Citation NR: 9701539
Decision Date: 01/17/97 Archive Date: 02/03/97
DOCKET NO. 95-05 803 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for a heart condition.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Curtis W. Fetty, Associate Counsel
INTRODUCTION
The veteran had active service from December 1942 to October
1945 and was a prisoner of war (POW) from March 1944 to May
1945.
This appeal arises from an October 1994 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania.
The veteran submitted a notice of disagreement in December
1994. In January 1995, the RO issued a statement of the
case. In February 1995 the veteran submitted a substantive
appeal. Supplemental statements of the case were issued in
May 1995 and May 1996.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that while a POW of the German
Government, he was subjected to severe malnutrition which led
to his present heart condition; he requests service
connection for a heart condition.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence favors the claim for service connection for a heart
condition.
FINDINGS OF FACT
1. The veteran is a combat veteran, and was a POW of the
German government for approximately 14 months during World
War II.
2. The veteran experienced localized edema while a POW.
3. The veteran has disabling ischemic heart disease, as
shown by medical records.
CONCLUSION OF LAW
A heart condition is presumed to have been incurred in active
service. 38 U.S.C.A. §§ 1110, 1112, 1154, 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran had active service from December 1942 to October
1945 and was a POW of the German government from March 1944
to May 1945. He was awarded the Purple Heart Medal for a
shrapnel wound of the leg.
The veteran's service medical records are negative for
treatment for or evidence of a heart condition.
In a rating decision of May 1946, service connection was
established for residuals of a shell fragment wound to the
right ankle. A 10 percent disability was assigned.
In a rating decision of February 1948, service connection for
chronic tonsillitis was established and a noncompensable
evaluation was assigned. Numerous subsequent rating
decisions continued these ratings.
In March 1986, the veteran underwent a VA examination. The
diagnoses were: (1) Post-traumatic stress disorder (PTSD)
and claustrophobia on Axis I; and a prostate condition, renal
calculi, and osteoporosis on Axis III.
According to a February 1993 VA treatment report, high
cholesterol and cardiomegaly were noted.
In August 1993 the veteran underwent a VA examination.
According to the examination report, the diagnosis included
PTSD, chronic prostatitis, and status-post myocardial
infarction in 1988.
According to an August 1993 statement, the veteran felt that
a heart condition may have been caused by the stress of POW
incarceration.
In a rating decision of November 1993, a 30 percent rating
was assigned for the veteran's service connected PTSD and a
claim for service connection for arthritis/osteoporosis and
for a heart condition was denied.
The veteran was treated at various times during 1994 and 1995
for chest pain and angina.
In August 1994, the veteran submitted a claim for service
connection for a heart condition. In his claim, the veteran
stated that while a POW for over 14 months, he suffered from
latent and irreversible effects of severe malnutrition which
has led to his present heart condition.
The veteran underwent a VA examination in August 1994.
According to a radiology diagnostic report, the impression
was moderate cardiomegaly with atherosclerotic changes of the
thoracic artery, mild pulmonary congestion, and no evidence
of active pulmonary disease.
October and November 1994 RO rating decisions continued the
denial of the veteran's claim for service connection for a
heart condition.
In November 1994, the veteran submitted private treatment
records which noted that he had been treated for
ureterolithiasis in October 1989. An October 1990 post
myocardial examination was also submitted. Old anteroseptal
myocardial infarction with persistent ST (sinus tachycardia)
elevation suggesting LV (left ventricle) aneurysm formation
was noted. No etiology was given.
In April 1995 the veteran testified at a hearing that he
first became aware of his heart trouble in 1985 or 1986. He
testified that it was confirmed by VA in February 1988. He
also testified that while he was a POW he had various foot
infections and swelling of the legs and feet, which he
attributed to scabies.
The veteran underwent a VA examination in July 1995. The
impression was: (1) Positive exercise ECG test for ischemia;
(2) exercise-associated chest discomfort typical of angina at
peak heart rate; (3) average functional capacity; (4) normal
blood pressure response to exercise; and (5) occasional PVC's
(premature ventricular contractions) and PAC's (premature
atrial contractions).
A December 1995 radiology report noted COPD (chronic
obstructive pulmonary disease) and cardiomegaly. A February
1996 radiology report noted left ventricular dysfunction,
mitral regurgitation and other heart conditions.
The record shows that the veteran's claim is well grounded,
meaning that it is plausible. The Board finds that all
relevant evidence for equitable disposition of this claim has
been obtained and that no further assistance to the veteran
is required to comply with VA's duty to assist him.
38 U.S.C.A. § 5107(a) (West 1991).
In order to establish service connection for a disability,
the evidence must show it resulted from disease or injury
incurred in or aggravated by active service. 38 U.S.C.A.
§ 1110 (West 1991); 38 C.F.R. § 3.303 (1995).
Where a veteran is a former prisoner of war detained or
interned for not less than 30 days and beriberi (including
beriberi heart disease) becomes manifest to a degree of 10
percent anytime after such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. For purposes of this section, the term beriberi
heart disease includes ischemic heart disease in a former
prisoner of war who had experienced localized edema during
captivity. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307,
3.309(c) (and note) (1995).
The Board notes that for former POWs, ischemic heart disease
shall be presumptively service connected if manifest to a
degree of 10 percent or more at any time after discharge from
service, if there is evidence of local edema during
captivity. The Board finds that the veteran is a combat
veteran, he was a POW for approximately 14 months, and has
provided satisfactory lay testimony concerning leg and foot
swelling during incarceration as a POW. See 38 U.S.C.A.
§ 1154(b) (West 1991). While he attributed this swelling to
scabies, he is not competent to render a medical diagnosis or
opinion as to causation. However, he is competent to testify
as to his own empirical observations—in this case, localized
swelling. Medical records indicate that he has ischemic
heart disease, ratable as at least 10 percent disabling under
38 C.F.R. § 4.104, Diagnostic Code 7005 (1995). The Board
further finds that because there is no evidence to the
contrary, service incurrence under these facts must be
presumed, 38 C.F.R. § 3.307(a)(5). Therefore, service
connection for a heart condition is granted.
ORDER
Service connection for a heart condition is granted.
J. E. DAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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